Signing documents for someone losing capacity
Capacity is a sliding scale. Here's what carers need to know about signing estate planning documents with someone whose capacity is declining.
Capacity for signing legal documents is decision-specific – someone may have capacity for a simple will but not a complex trust. For clients with declining capacity, solicitors typically require a capacity assessment from a doctor before drafting, and careful documentation at signing.
Decision-specific capacity
Capacity isn't all-or-nothing. A client may have capacity to execute a simple will (understanding their assets and who should inherit) but lack capacity for a complex testamentary trust (understanding trustee powers, distribution rules, vesting).
Medical assessment
For clients with declining capacity, a formal assessment from a GP or specialist before drafting is best practice. The assessment specifies what decisions the client can and can't make.
Simple documents during decline
A client with declining capacity may still be able to execute a simple will, straightforward EPA, and basic advance care directive. Complex structures (testamentary trusts, business succession) may require reliance on documents executed earlier.
Witnessing and documentation
At signing, the solicitor documents capacity – often including a detailed file note, sometimes recording the conversation, sometimes involving the GP as witness. This protects the document against later capacity challenges.
When capacity is too far gone
Once capacity has been meaningfully lost, no new documents can be executed. The family is limited to documents made earlier, plus SACAT applications for administration.
Summary
Capacity is a sliding scale. Here's what carers need to know about signing estate planning documents with someone whose capacity is declining.
Talk to Sam about your situation
If this article raised questions for your own circumstances, Sam Michele offers free 20-minute initial consultations. Learn more about our enduring power of attorney service, or book a consultation.
Related reading
- Power of attorney and dementia
- Power of attorney for elderly parent
- Enduring powers of attorney service
Disclaimer: This article is general information only and does not constitute legal advice. Estate planning is deeply personal - every family's circumstances are different. For advice specific to your situation, please contact Rosewood Succession Solicitors.